Monday, July 30, 2007
In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Johnson)(arbitration ordered) In re Palm Harbor Homes, Inc., and Palm Harbor Homes I, L.P. d/b/a Palm Harbor Village, Relator ════════════════════════ On Petition for Writ of Mandamus ════════════════════════ Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined. Justice O’Neill filed a concurrence. This original proceeding presents the issue of whether the purchasers of a manufactured home must arbitrate their claims against both the retailer and manufacturer of the home pursuant to a written arbitration agreement between the purchasers and the retailer. The agreement specified that it inured to the benefit of the manufacturer and gave the manufacturer a twenty-day period during which it could opt out of arbitration. We conclude that the manufacturer’s opt-out right did not render the arbitration agreement unenforceable and that the purchasers must arbitrate their claims against both parties. I. Background Raymond and Crystal Ripple contracted with Palm Harbor Village (the retailer) to purchase a manufactured home which was to be, and subsequently was, manufactured by Palm Harbor Homes, Inc. During the process of contracting for and purchasing the home, the Ripples and the retailer entered into several separate agreements. Two of the agreements were arbitration agreements. The first was dated October 1, 1998, and the second was dated December 17, 1998. The Ripples urge that the second agreement is applicable to the issues in this appeal. Relators do not contend otherwise. We will assume, without deciding, that the second agreement governs the issues presented and reference it as “the agreement.” The agreement provided that all disputes between the Ripples and the retailer arising out of or relating in any way to the sale, purchase, or occupancy of the home would be resolved through binding arbitration. The agreement is one page long; is labeled “ARBITRATION AGREEMENT” at the top of the page in large bold-face capital letters; sets out in the first paragraph that it inures to the benefit of the manufacturer as well as binds the purchasers and retailer; and provides that it does not constitute a waiver of any substantive rights or remedies available under applicable law, but is an election to resolve claims, disputes and controversies by arbitration rather than the judicial process. The next-to-the-last sentence provides, in all capital letters, that “THE PARTIES KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL.” The agreement also provides that the manufacturer “in its sole discretion, may opt out of, and elect not to be bound by, the arbitration by giving written notice of the election to all parties within twenty (20) days after receipt of” notice that another party intended to arbitrate a dispute. After the manufactured home was purchased by the Ripples, they began experiencing problems with it and lodged a series of complaints. They eventually sued both the retailer and the manufacturer, alleging breach of contract, breach of warranty, and statutory liability under the Residential Construction Liability Act. The retailer and manufacturer moved to compel arbitration under the Federal Arbitration Act (FAA). See 9 U.S.C. §§ 1-16. The trial court denied the motion as to both. A divided court of appeals denied mandamus relief. 129 S.W.3d 636, 646. Both the retailer and manufacturer seek a writ of mandamus directing the trial court to order the Ripples to arbitrate. The Ripples do not dispute applicability of the FAA, but oppose arbitrating any claims because (1) relators have not carried their burden to establish a valid agreement to arbitrate; (2) the signed arbitration agreement lacks consideration; (3) the agreement is substantively and procedurally unconscionable; and (4) the manufacturer was not a signatory to the agreement and has not shown itself to be a third-party beneficiary entitled to enforce the agreement. II. Agreement to Arbitrate The Ripples contend that the retailer and manufacturer have not met their burden to establish an agreement to arbitrate because they have not presented complete records of the three hearings held by the trial court en route to its final order denying arbitration. They assert that absent such records, the trial court’s ruling cannot be determined to have been an abuse of discretion. They do not contend, however, that any evidence contesting validity of the agreement was introduced at any of the three hearings. Relators’ original answer to the Ripples’ suit included a plea in abatement seeking dismissal or abatement of the suit based on the arbitration agreement. The arbitration agreement, along with other documents signed by the Ripples, was attached to the pleading. The Ripples do not claim to have at any point disputed that they signed the arbitration agreement as part of the process by which they purchased their manufactured home. Their position as to the arbitration agreement is encapsulated by their response to relators’ second motion for reconsideration of the motion to compel arbitration and their affidavits attached to that response: (1) in the course of contracting for the purchase of the home they signed several documents, including two documents “purporting” to be arbitration agreements; (2) the documents were not explained to them; (3) they were told that the documents were necessary to complete the purchase; (4) they were unaware that they had signed arbitration agreements; (5) they never were in contact with the manufacturer during the purchase process; (6) the manufacturer did not sign the arbitration agreements; and (7) they were unaware of what arbitration entailed and did not voluntarily waive their right to a jury trial. The Ripples have not asserted that there was fraud, deceit, or misrepresentation involved in their signing of the agreement. Accordingly, they are bound by the agreement. See In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (per curiam) (holding that absent fraud, misrepresentation, or deceit, parties are bound by the terms of the contract signed, regardless of whether they read it). Given the Ripples’ concession at oral argument that records of the hearings in the trial court would not show that evidence was introduced, and their consistent position taken before the trial court as reflected by the record which is before us, the failure of relators to present transcripts of the hearings does not create a presumption that matters occurring during the hearings would support an implied finding that an arbitration agreement did not exist. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 781-84 (Tex. 2005) (rejecting a claim that we must presume evidence that supported the trial court’s order was presented at a pretrial hearing when there was no indication evidence was presented at that hearing). Because the relators presented a signed arbitration agreement to the court along with other documents the Ripples signed, and the Ripples have presented no evidence that they did not sign the agreement, we conclude that, as a matter of law, the existence of an arbitration agreement among the parties was established. III. Consideration Next, the Ripples claim the arbitration provision lacks consideration. In determining validity of agreements to arbitrate which are subject to the FAA, we generally apply state-law principles governing the formation of contracts. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Arbitration agreements, like other contracts, must be supported by consideration. See In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex. 2005) (per curiam); In re Halliburton Co., 80 S.W.3d 566, 569-70 (Tex. 2002). Such consideration may take the form of bilateral promises to arbitrate. See In re AdvancePCS, 172 S.W.3d at 607. Further, when an arbitration clause is part of a larger, underlying contract, the remainder of the contract may suffice as consideration for the arbitration clause. Id.; see also In re FirstMerit Bank, N.A., 52 S.W.3d 749, 757 (Tex. 2001). A. The Retailer The arbitration agreement was part of a larger contractual relationship between the Ripples and the retailer. The underlying contract between the Ripples and the retailer constituted valid consideration for the arbitration agreement as between them, as did their mutual promises to arbitrate disputes involving the manufactured home or its sale. See In re AdvancePCS, 172 S.W.3d at 607 (holding there was a valid arbitration agreement, as the underlying contract provided adequate consideration). The agreement’s provision extending to the manufacturer a right to opt out of arbitration, even if it were illusory because it did not bind the manufacturer to arbitrate, did not make either the consideration of the underlying contract or the promises to arbitrate any disagreements between themselves illusory as between the retailer and the Ripples. Cf. Light v. Centel Cellular Co., 883 S.W.2d 642, 645 (Tex. 1994) (noting that a promise is illusory if it fails to bind the promisor). B. The Manufacturer A third-party beneficiary may enforce a contract to which it is not a party if the parties to the contract intended to secure a benefit to that third party and entered into the contract directly for the third party’s benefit. See Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002); see also MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). As previously noted, the arbitration agreement provided that it “inure[d] to the benefit of the manufacturer of the Home.” By its own terms, the agreement was entered into, in part, directly for the manufacturer’s benefit. Because the manufacturer is a third-party beneficiary of the underlying contract and not a first party to it, our analysis as to the Ripples’ obligation to arbitrate with the manufacturer is different from our analysis as to the retailer. As a third-party beneficiary, the manufacturer was not a promisor and therefore was not required to give consideration for the agreement which created its third-party beneficiary status. See Stine, 80 S.W.3d at 589. For purposes of determining whether the arbitration agreement was supported by consideration under such circumstances, it is not relevant that the agreement did not bind the manufacturer to arbitrate, for as we have concluded, the agreement was supported by consideration in the form of both the underlying contract and promises of the retailer. It follows that the Ripples’ obligation to arbitrate with the manufacturer did not fail for lack of consideration. See id. We have recognized that an arbitration agreement may be illusory if a party can unilaterally avoid the agreement to arbitrate. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 230 & n.2 (Tex. 2003). In Davidson, we remanded a case for the trial court to determine whether an ambiguous contract allowed an employer to modify or terminate an arbitration agreement at any time. Id. at 230-31. We noted that most courts which have considered the issue have held that if one party retains a unilateral, unrestricted right to terminate an arbitration agreement, the agreement is illusory. Id. at 230 & n.2. Unlike the facts before us in this matter, however, Davidson addressed illusoriness in regard to promises between direct parties to an agreement. In this matter the manufacturer was a third-party beneficiary, not a direct party promisor. We hold that the agreement was not illusory as to the manufacturer. IV. Unconscionability The Ripples also challenge the agreement as being both substantively and procedurally unconscionable. Substantive unconscionablity refers to the fairness of the arbitration provision itself, whereas procedural unconscionability refers to the circumstances surrounding adoption of the arbitration provision. In re Halliburton, 80 S.W.3d at 571. Such issues are properly considered by courts in determining the validity of an arbitration provision. Id. at 572. A. Substantive Unconscionability The Ripples claim the arbitration agreement is substantively unconscionable because it binds them to arbitrate with the manufacturer but does not bind the manufacturer to arbitrate with them. The test for substantive unconscionability is whether, “given the parties’ general commercial background and the commercial needs of the particular trade or case, the clause involved is so one‑sided that it is unconscionable under the circumstances existing when the parties made the contract.” In re FirstMerit Bank, 52 S.W.3d at 757. Even though the Ripples have asserted claims in addition to breach of contract, their agreement to purchase the home and their use of the home underlie all their claims. We have recently held that under certain circumstances a party to an arbitration agreement may be compelled to arbitrate claims with a nonparty if the controversy arises from a contract containing an arbitration clause. In re Vesta Ins. Group, Inc., ___ S.W.3d ___, ___ (Tex. 2006) (per curiam); see Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527-28 (5th Cir. 2000) (stating that equitable estoppel allows a nonsignatory to compel arbitration when a signatory must rely on the contract with the arbitration provision in asserting its claims or when the claims against the nonsignatory are interwoven with the claims against a signatory); see also In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005) (holding that equitable estoppel doctrine may in some instances require a nonparty to an arbitration agreement to arbitrate with a party); In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 738-39 (Tex. 2005) (same). Also, the manufacturer had a limited period in which to refuse arbitration. Such a circumstance does not create a different relationship than provisions usually found in third-party beneficiary situations, because third-party beneficiaries generally have the right to disclaim benefits proffered by a contract. See Rau v. Modern Sales & Serv., Inc., 414 S.W.2d 203, 206 (Tex. Civ. App.–San Antonio 1967, writ ref’d n.r.e.); Restatement (Second) of Contracts § 306 (1981). There is nothing inherently unconscionable about arbitration agreements, In re AdvancePCS, 172 S.W.3d at 608, and there is nothing unconscionable about contracting to benefit a third party. See Stine, 80 S.W.3d at 589-90. The Ripples have not met their burden to prove the agreement was so one-sided as to be unconscionable when its provisions effectively incorporate established principles of contract law. Considered in light of the remaining provisions of the agreement, the manufacturer’s limited right as a third-party beneficiary to refuse to arbitrate does not render the arbitration agreement so one-sided as to be substantively unconscionable. The Ripples also contend that the agreement is substantively unconscionable because it is a contract of adhesion: they were required to execute the document in order to purchase the home. But, the fact that the Ripples would not have been able to buy the manufactured home unless they signed the arbitration agreement does not, in and of itself, make the agreement substantively unconscionable. See In re AdvancePCS, 172 S.W.3d at 608. Furthermore, assuming arguendo that the agreement constituted a contract of adhesion, we have held that adhesion contracts are not per se unconscionable or void. Id. at 608; see also EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90-91 (Tex. 1996) (per curiam). B. Procedural Unconscionability Finally, the Ripples urge that the agreement is procedurally unconscionable. They point to their affidavits as establishing that they did not voluntarily waive their rights to a jury trial and that they are unsophisticated persons who, if the concept of arbitration had been explained to them, would not have signed the arbitration agreements. Such assertions, however, presuming the trial court found them to be true, fail to establish procedural unconscionability as to adoption of the arbitration agreement. See In re McKinney, 167 S.W.3d at 835 (holding that absent fraud, misrepresentation, or deceit, parties are bound by terms of the contract they signed, regardless of whether they read it or thought it had different terms); EZ Pawn, 934 S.W.2d at 90 (holding that a party who has the opportunity to read an arbitration agreement and signs it is charged with knowing its contents); see also In re Halliburton, 80 S.W.3d at 568-69 (holding an arbitration clause was accepted by an employee despite employee’s claim that he did not understand it). The principles of unconscionability do not negate a bargain because one party to the agreement may have been in a less advantageous bargaining position. Unconscionablity principles are applied to prevent unfair surprise or oppression. See In re FirstMerit Bank, 52 S.W.3d at 757. The agreement before us is clearly labeled as an agreement providing that disputes will be settled by arbitration. It is relatively short and specifically provides that it does not constitute a waiver of any substantive rights or remedies except as to the forum for resolving disputes, and it highlights the statement that a jury trial is being waived. We find neither unfair surprise nor oppression in the agreement as a whole nor in the substance of the manufacturer’s opt-out provision. Accordingly, we disagree with the Ripples’ contention that the agreement was, as to either the retailer or the manufacturer, procedurally unconscionable. V. Conclusion We conclude that the trial court abused its discretion in failing to order the Ripples to arbitrate their claims against the retailer and manufacturer. We conditionally grant the writ of mandamus and direct the trial court to compel arbitration of the Ripples’ claims. The writ will issue only if the trial court fails to comply with our directive. ________________________________________ Phil Johnson Justice OPINION DELIVERED: June 9, 2006  The court of appeals construed the two arbitration agreements together in determining that the second agreement’s opt-out language applied. See 129 S.W.3d 636, 643. Whether we construe the agreements together as the court of appeals construed them, or consider the second agreement as the operative agreement as the Ripples urge, we must address the effect of the opt-out language which is only in the second agreement.
Childers v. Advanced Foundation Repair, No. 05-0831 (Tex. May 26, 2006)(finality, appealability, motion to compel arbitration) ══════════════════════════════════ On Petition for Review from the Court of Appeals for the Thirteenth District of Texas PER CURIAM OPINION The issue in this arbitration dispute is whether the appeal below was interlocutory or from a final order. The court of appeals deemed it interlocutory and held that the court therefore lacked jurisdiction. __S.W.3d ___, ___, No. 13-04-193-CV, 2005 Tex. App. LEXIS 6641, at *1 (Aug. 18, 2005). We disagree. Steve Childers contracted with Advanced Foundation Repair to level and stabilize a damaged foundation. Childers later brought suit against AFR asserting negligence, breach of contract, breach of implied warranty of good and workmanlike services, and Deceptive Trade Practices Act claims. The contract contained an arbitration agreement that provided: In the event that Owner and Company cannot agree that the movement in the foundation has been controlled and settlement is within the tolerances specified above, it is specifically agreed by acceptance of this warranty that the matter shall be determined by binding arbitration . . . . AFR moved to dismiss the case “in its entirety without prejudice due to the arbitration agreement on these matters.” In its Final Judgment, the trial court granted the motion to dismiss without prejudice and stated: All other claims in this case by all parties to this case are hereby dismissed without prejudice, such claims to be decided in arbitration pursuant to the arbitration provisions in the contract between these parties. This judgment is final, disposes of all parties and all claims in this case, is appealable, and disposes of this case in its entirety. The court of appeals erroneously determined Childers’s appeal to be interlocutory. In Lehmann v. Har-Con Corp., we held that a “judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final . . . .” 39 S.W.3d 191, 200 (Tex. 2001). Such is the case here. AFR requested that the trial court dismiss the case “in its entirety,” and the trial court did exactly that. The trial court’s Final Judgment is unequivocal: “This judgment is final, disposes of all parties and all claims in this case, is appealable, and disposes of this case in the entirety.” Because the trial court’s order was all-encompassing and, as the record confirms, disposed finally and completely of all claims and parties, the court of appeals erred in deeming the appeal interlocutory and dismissing it for lack of jurisdiction. We note that the federal approach is identical. See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000) (holding that an appeal may be taken of an order that compels arbitration and dismisses all claims before the court). Without hearing oral argument, we grant Childers’s petition for review, reverse the court of appeals’ judgment dismissing the case for lack of jurisdiction, and remand to the court of appeals to consider the merits of Childers’s appeal. See Tex. R. App. P. 59.1, 60.2(d). Opinion delivered: May 26, 2006  Commendably, AFR, which sought and won complete dismissal in the trial court, concedes “[i]n the interest of intellectual honesty” that the court of appeals had jurisdiction.  Given the basis of today’s holding – that the trial court’s order was not interlocutory but final and appealable – we need not reach two attendant issues disputed by the parties: (1) whether Childers’s claims fall within the scope of the arbitration agreement; and (2) whether the agreement is governed by the Federal Arbitration Act or the Texas Arbitration Act.
The City of Houston v. Jackson, No 04-0465 (Tex. April 7, 2006)(O'Neill)(fire fighter employment grievance, penalty, plea to the jurisdiction, two appeals in the court of appeals below, law of case doctrine does not preclude Texas Supreme Court from reviewing issue in first, interlocotury appeal) On Petition for Review from the Court of Appeals for the First District of Texas ══════════════════════════════ Argued October 20, 2005 Justice O’Neill delivered the opinion of the Court. Section 143.134(h) of the Texas Local Government Code imposes a $1,000 penalty payable to an aggrieved fire fighter for each day a department head intentionally fails to implement a decision of the Fire Fighters’ and Police Officers’ Civil Service Commission (the “Commission”) under Section 143.131 or a decision of a hearing examiner under Section 143.129 that has become final. Tex. Loc. Gov’t Code ' 143.134(h). The court of appeals held that the penalty provision also applies to a grievance examiner’s unappealed recommendation under Section 143.130 of the Code. 135 S.W.3d 891. We hold that, by the provision’s plain language, it does not. Accordingly, we reverse the court of appeals’ judgment and dismiss Jackson’s statutory penalty claim for want of jurisdiction. I. Background In May 1996, Robert Jackson, an Engineer Operator with the City of Houston Fire Department, requested a voluntary transfer to Fire Station 70. When his request was denied, Jackson initiated a grievance pursuant to Subchapter G of Chapter 143 of the Local Government Code. See Tex. Loc. Gov’t Code '' 143.127-35. That subchapter establishes a four-step process for resolving complaints of aggrieved fire fighters and police officers employed by municipalities with a population of 1.5 million or more. Proceedings under that process increase in formality as the grievance advances from Step I to Step IV, when a final and binding decision is made by an independent hearing examiner or the Commission. See id. When Jackson’s transfer was denied under the proposed solutions presented at Steps I and II of the grievance process, he elected to pursue his Step III appeal before a Commission-appointed grievance examiner rather than an independent third party hearing examiner, a choice the Code expressly afforded him. See id. ' 143.129(d). After an informal hearing, the grievance examiner recommended Jackson receive a transfer to any station, other than Station 70, that had an opening on November 21, 1996, the date of the recommendation. The grievance examiner noted that it was Jackson’s responsibility to apply for his choice of transfer. Neither Jackson nor the Fire Chief appealed the grievance examiner’s recommendation to the Commission; consequently, the recommendation was deemed accepted by the parties. See id. ' 143.130(e). At the time of the recommendation, Jackson occupied a “roving” position in the department, meaning he was assigned to a particular station but was often sent to others when the need arose. The only stations with openings on the date of the recommendation were 11B, 21B, and 82B. Although Jackson had a standing application to Station 11B when the grievance examiner’s recommendation issued, Jackson was not awarded that transfer, purportedly because the fire department’s district chief believed the grievance examiner’s decision required Jackson to submit a new, written transfer request, which he did not do. In April 1998, Jackson was transferred from his “roving” position to Station 48D as a result of an agreement with the Fire Chief. After this transfer, he continued to submit, and often withdraw, applications to transfer stations, including various transfer requests in August and September of 1998. These requests were not granted, primarily because they were for stations other than those three that had openings available on the date of the recommendation. On September 18, 1998, Jackson filed a second grievance, complaining that the original recommendation had never been implemented. The assistant fire chief disposed of this second grievance by informing Jackson that he could not “rule on a grievance that supposedly has been decided by a grievance examiner.” Jackson did not appeal the assistant fire chief’s decision by filing a Step II grievance form. Two months later, Jackson sued the City of Houston and Lester Tyra, as Fire Chief of the Houston Fire Department, alleging the City’s failure to implement the grievance examiner’s 1996 recommendation violated Section 143.134(h) of the Local Government Code and seeking declaratory and mandamus relief. Jackson sought $798,000 in statutory penalties and interest as a result of the City’s alleged violation of Section 143.134(h), as well as costs and attorney’s fees. The City filed a plea to the jurisdiction, alleging Jackson had failed to exhaust his administrative remedies because the penalty provision applies only to decisions of the Commission under Section 143.131 or the decisions of independent hearing examiners under Section 143.129, whereas Jackson chose to pursue his grievance before a grievance examiner under Section 143.130. The trial court denied the City’s jurisdictional plea, and the court of appeals affirmed. City of Houston v. Jackson, 42 S.W.3d 316 (Tex. App.CHouston [14th Dist.] 2001, pet. dism’d w.o.j.) (“Jackson I”). The appeals court concluded that an unappealed grievance examiner’s recommendation under Section 143.130 constituted a final decision of the Commission under Section 143.131 for purposes of invoking the statutory penalty provision; thus Jackson had exhausted his administrative remedies and properly invoked the trial court’s jurisdiction. Id. at 322-23. The case proceeded to trial, and the jury found that the Fire Chief had intentionally failed to implement Jackson’s transfer request from November 21, 1996 to April 7, 1998. Based on the jury’s findings, the trial court rendered judgment on the jury’s verdict in Jackson’s favor, and awarded $477,000 in statutory penalties, attorney’s fees, post-judgment interest, and other expenses. Both the City and Jackson appealed, the City challenging the trial court’s judgment on a number of grounds, including lack of jurisdiction, and Jackson contesting the period for which the trial court awarded the statutory penalty. The court of appeals affirmed the trial court’s judgment in all respects. 135 S.W.3d at 894 (“Jackson II”). Jackson did not seek review of the court of appeals’ decision. We granted the City’s petition for review to consider Section 143.134(h)’s application and related issues. II. Analysis A. Overview of the Grievance Process Chapter 143 of the Local Government Code establishes the four-step grievance process that governs this case. See Tex. Loc. Gov’t Code '' 143.127-35. The Code covers a broad range of grievances: The fire fighter or police officer may file a grievance that relates to the same aspects of the person’s employment over which the civil service commission for the employees of the municipality who are not subject to this chapter would have lawful jurisdiction, including but not limited to a written or oral reprimand, transfers, job performance reviews, and job assignments. Id. ' 143.127(a). To initiate a grievance, the fire fighter must file a Step I grievance form with the department head or departmental grievance counselor. Id. ' 143.128(a). Thereafter, the departmental grievance counselor schedules a Step I meeting with the fire fighter, the fire fighter’s immediate supervisor or other appropriate supervisor, or both, and the person against whom the grievance is lodged. Id. ' 143.128(b). The Step I procedure attempts to resolve the complaint informally and encourages the supervisor to “openly discuss the grievance with the fire fighter or police officer in a sincere attempt to resolve it.” Id. ' 143.128(c). The fire fighter’s supervisor must provide an evaluation and proposed recommendation for solution of the Step I grievance. Id. ' 143.128(d). If the proposed solution is not acceptable, the fire fighter may file a Step II grievance form within fifteen calendar days after receiving the supervisor’s proposed Step I solution. Id. ' 143.129(a). If the fire fighter fails to timely file a Step II grievance form, the Step I solution is considered accepted. Id. ' 143.128(e). The Step II proceeding requires a meeting of all Step I participants, as well as the department head or the department head’s representative. Id. ' 143.129(b). The department head or representative is required to provide a proposed recommendation for solution to the fire fighter. Id. ' 143.129(c). If the proposed solution is not acceptable, the fire fighter has the option to appeal along one of two tracks. The fire fighter may: (1) “submit a written request stating the person’s decision to appeal to an independent third party hearing examiner pursuant to the provisions of Section 143.057,” or (2) “file a Step III grievance form with the director in accordance with Section 143.130,” in which event the Commission appoints a grievance examiner to oversee the appeal. Id. '' 143.129(d), 143.132(a). The difference between these two tracks is significant, with each having perceived advantages and disadvantages that we will later describe. An independent third party hearing examiner has the same duties and powers as the Commission, including the right to issue subpoenas, and issues a decision that is “final and binding on all parties.” See id. '' 143.057(c), 143.057(f). Although the Code governs the hearing conducted by an independent third party hearing examiner, a fire fighter who opts for this alternative in effect removes the grievance outside the influence of the Commission and its appointees. The other choice afforded a fire fighter is to appeal the Step II proposed solution to a Commission-appointed grievance examiner, who will conduct a hearing with all Step II participants and each person specifically named in the grievance. Id. ' 143.130(c). This Step III proceeding is “conducted as an informal administrative procedure.” Id. Similar to the requirements in Steps I and II, the grievance examiner presents written findings and a recommendation for solution. Id. ' 143.130(d). If the proposed solution is not acceptable to the fire fighter or the department head, either may file a Step IV grievance form. Id. ' 143.130(e). Under the Step IV proceeding, the Commission reviews the grievance examiner’s findings and recommendation and considers the transcript of the Step III hearing before rendering a decision. Id. ' 143.131(b). The Commission decision is final and binding on the parties. Id. ' 143.131(c). With this overview of the Chapter 143 grievance process and Jackson’s chosen journey through it, we must next address a preliminary error-preservation argument that Jackson has raised. B. Preservation As a threshold matter, Jackson contends the City failed to preserve error on the issue of Section 143.134(h)’s construction because the City’s challenge to the trial court’s jurisdiction on identical grounds was rejected in Jackson I, 42 S.W.3d at 322-23, and this Court dismissed the City’s interlocutory appeal for want of jurisdiction. In Jackson I, the Fourteenth District Court of Appeals held that a grievance examiner’s unappealed recommendation under Section 143.130 was in effect a final decision of the Commission under Section 143.131; therefore, Jackson had exhausted his administrative remedies and the trial court had jurisdiction over his statutory penalty claim. Id. at 322. In Jackson II, the First District Court of Appeals determined that the Jackson I decision was not clearly erroneous and declined to reconsider that court’s construction of Section 143.134(h). 135 S.W.3d at 897. In this appeal, Jackson again contends the City has failed to demonstrate that the Jackson I court’s construction of Section 143.134(h) was clearly erroneous, and argues that the court of appeals here did not abuse its discretion by following that decision. Consequently, Jackson claims, the court of appeals properly applied the “law of the case” doctrine and we should not disturb its decision. We disagree. The “law of the case” doctrine provides that a decision of a court of last resort on a question of law will govern a case throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). The Jackson II court correctly noted that a conclusion reached by an intermediate appellate court does not bar reconsideration of the initial conclusion in a subsequent appeal, and the decision to revisit the conclusion is left to the discretion of the court under the particular circumstances of each case. 135 S.W.3d at 896 (citing Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)). But the “law of the case” doctrine in no way prevents this Court from considering legal questions that are properly before us for the first time. We are not bound by the Jackson I court’s construction of Section 143.134(h), since the City’s interlocutory petition for review to this Court was properly dismissed and the City’s challenge to the court of appeals’ construction of Section 143.134(h) is now before us for the first time. Cf. Trevino v. Turcotte, 564 S.W.2d 682, 685 (Tex. 1978) (holding that a court of appeals’ conclusion was not binding under the “law of the case” doctrine when the petitioner’s first writ of error was denied by this Court “writ refused, no reversible error”). We now turn to the Section 143.134(h) penalty provision and the parties’ arguments. C. Section 143.134(h) Section 143.134(h) of the Local Government Code provides as follows: If the decision of the commission under Section 143.131 or the decision of a hearing examiner under Section 143.129 that has become final is favorable to a fire fighter, the department head shall implement the relief granted to the fire fighter not later than the 10th day after the date on which the decision was issued. If the department head intentionally fails to implement the relief within the 10-day period, the municipality shall pay the fire fighter $1,000 for each day after the 10-day period that the decision is not yet implemented. Id. ' 143.134(h) (emphasis added). Our primary objective when construing a statute is to ascertain and give effect to the Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In discerning that intent, we begin with the “‘plain and common meaning of the statute’s words.’” Id. (quoting State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)). When the statutory language is unambiguous, we must apply the statute as written. See RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985). Moreover, we have consistently held that penal statutes should be strictly construed. See, e.g., Brown v. De La Cruz, 156 S.W.3d 560, 565 (Tex. 2004). We have similarly construed statutes waiving sovereign and governmental immunity. See, e.g., Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Tex. Gov’t Code ' 311.034 (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”). With these standards in mind, we begin by examining the text of Section 143.134(h). The City argues that Section 143.134(h), by its plain terms, does not extend to a grievance examiner’s recommendation under Section 143.130. At no time, the City contends, did the grievance examiner’s recommendation concerning Jackson’s Step II appeal ever become a final Commission decision under Section 143.131, or a decision by an independent hearing examiner under Section 143.129, as the penalty provision unambiguously requires. Had the Legislature intended the statutory penalty to apply to mere recommendations, the City argues, it could have easily included them in the statutory language with unmistakable clarity. Since it did not, the City maintains, this Court must apply the provision as written. Jackson responds with a plain-language argument of his own, claiming that the reference in Section 143.134(h) to decisions by a “hearing examiner under Section 143.129” encompasses recommendations proposed by both grievance examiners and independent hearing examiners. Jackson notes that neither type of examiner is appointed under Section 143.129. Rather, independent third party hearing examiners and grievance examiners are authorized under Sections 143.057 and 143.130, respectively. Thus, Jackson contends, the penalty provision’s reference to a “hearing examiner under Section 143.129" extends to both types of decisionmakers, since it is that section that provides fire fighters the option to choose one or the other when appealing a Step II proposed solution. According to Jackson, had the Legislature intended the reference to “hearing examiners under Section 143.129” to apply solely to independent hearing examiners, which are appointed under Section 143.057, the Legislature would have logically referenced that section instead of Section 143.129 to avoid any ambiguity in the penalty provision’s application. We believe the statutory grievance procedure’s language and structure contradict Jackson’s argument and support the City’s interpretation of the penalty provision. As we have said, the Code provides a fire fighter like Jackson the choice of appealing a Step II proposed solution to a grievance examiner or an independent third party hearing examiner. See Tex. Loc. Gov’t Code ' 143.129(d). There are significant consequences associated with that choice, and each track has perceived advantages and disadvantages. For example, a grievance examiner’s Step III recommendation for solution is subject to further appeal to the Commission, absent which it is deemed accepted by the parties. Id. '' 143.130(e), 143.131(a)-(c). A fire fighter who appeals to the Commission and is not satisfied with its decision may file a petition in district court to set aside the Commission’s decision and proceed by trial de novo. Id. ' 143.015(a)-(b). In contrast, an independent hearing examiner’s decision is “final and binding on all parties,” id. ' 143.057(c), and any further review of the decision through an appeal to the district court is severely circumscribed. See id. ' 143.057(j) (“A district court may hear an appeal of a hearing examiner’s award only on the grounds that the arbitration panel was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.”). Not only do the two tracks invoke different procedures for appeal, there are different potential costs to the fire fighter depending upon the track chosen. There are no costs to the fire fighter who chooses to present his appeal to a grievance examiner, other than the costs of the fire fighter’s representation, id. ' 143.134(a), while expenses associated with an independent third party hearing examiner are allocated between the parties after the final decision according to who prevails. Id. ' 143.129(d). Finally, the method of selecting the examiner varies significantly between the two tracks. An independent hearing examiner is selected upon mutual agreement of the parties; if no agreement can be reached, the parties must methodically whittle down a list of qualified neutral arbitrators by alternately striking names until a single arbitrator remains to conduct the hearing. See id. ' 143.057(d). This mutual participatory process is in contrast to the Commission’s unilateral appointment of a grievance examiner. See id. '' 143.130(b), 143.132. In sum, the Code contains substantive distinctions between grievance examiners and independent third party hearing examiners, and those distinctions must inform our construction of the statutory penalty provision. We simply cannot presume, as Jackson urges us to do, that Section 143.134(h)’s reference to the decision of a “hearing examiner” was intended to gloss over this distinction and sweep the recommendations of grievance examiners into the statutory penalty provision. Instead, we find the text of the penalty provision sufficiently precise to conclude that the Legislature did not intend to include grievance examiner recommendations within the provision’s purview. In addition to the precise reference to a “hearing examiner,” the penalty provision also specifically references “the decision” of the Commission and “the decision” of the hearing examiner. Id. ' 143.134(h). Under the Code’s plain language, it is the Commission and independent hearing examiners who produce “decisions,” while grievance examiners are only authorized to provide “recommendations for solution.” Id. ' 143.130(d). We presume that the Legislature knew the difference between the two when crafting the penalty provision and intended it to apply only to final decisionmakers. Although Jackson claims the Legislature intended to make the alternatives of appeal equal under Section 143.129(d), we believe the statutory language compels the opposite conclusion. Jackson’s interpretation contravenes the plain language of Section 143.134(h) and would allow for the penalty to attach to recommendations resulting from informal, intermediate hearings midway through the grievance procedure. We find no support in the statutory language that the Legislature intended Section 143.134(h) to include appealable solutions and recommendations like those a grievance examiner is authorized to provide under Section 143.130. Jackson alternatively claims that, because the grievance examiner’s recommendation was not appealed, it became in effect a decision of the Commission for purposes of invoking the penalty provision. Jackson contends the crucial element in applying the penalty provision is not the entity issuing the decision, but whether or not the recommendation or decision is final. Because the grievance examiner is the duly appointed representative of the Commission, Jackson argues, the grievance examiner’s recommendation becomes the final decision of the Commission by operation of Section 143.131(a) when no party appeals. See Tex. Loc. Gov’t Code ' 143.131(a) (“[A] department head . . . [who] rejects the solution [of the grievance examiner] under Section 143.130, . . . must complete a step IV grievance form and file it . . . within 15 calendar days . . . .”). Such an interpretation, according to Jackson, is the only one that furthers the Legislature’s intent to discourage fire departments from failing to timely comply with solutions they have apparently accepted. If the City disagreed with the grievance examiner’s recommendation, Jackson maintains, it should have appealed to the Commission to vindicate its position. According to Jackson, the City should not be allowed to refuse to implement a recommendation it accepted and simultaneously avoid the penalty provision. Jackson further asserts that the penalty provision must apply to unappealed grievance examiner recommendations since the provision applies to a decision “that has become final.” Id. ' 143.134(h) (referring to “the decision of a hearing examiner under Section 143.129 that has become final . . . .”) (emphasis added). Because decisions by the Commission and independent hearing examiners are automatically final, the argument goes, the phrase “has become final” would be rendered surplusage unless it refers to grievance examiner recommendations that become final decisions of the Commission when the department head chooses not to appeal further. Again, we disagree, and decline Jackson’s invitation to judicially rewrite Section 143.134(h). A grievance examiner’s recommendation does not “become” a final “decision” of the Commission when no one appeals; rather, Section 143.130 specifically provides that the solution is deemed “accepted” by the parties: If the proposed solution is not acceptable to either the fire fighter or police officer or the department head, either party may file a step IV grievance form with the director in accordance with Section 143.131. If the fire fighter or police officer or the department head fails to timely file a step IV grievance form, the solution is considered accepted by that person. Id. ' 143.130(e) (emphasis added). The specific parties who are considered to have accepted the solution are the grievant and the department head, not the Commission. Id. Moreover, the Code does not equate deemed “acceptance” with decisionmaking. The Commission’s decisionmaking process is described in Section 143.131 and is invoked when the grievant or department head timely files a Step IV grievance form contesting the Step III recommendation, something neither side chose to do in this case. Id. ' 143.131(a). The decisionmaking process involves a Commission review of the grievance examiner’s findings and recommendations, consideration of the transcript and evidence accepted at the Step III hearing, and issuance of a written decision that must be provided to the grievant, the department head, and the grievance examiner. Id. ' 143.131 (b)-(c). Only then is the Commission’s decision considered final. Id. ' 143.131(c). Jackson’s argument that an unappealed grievance examiner’s recommendation is akin to a final decision of the Commission not only lacks support in the statutory language, but taken to its logical conclusion would allow the $1,000 daily penalty to attach to the failed implementation of any unappealed recommendation even if the recommendation was proposed by the fire fighter’s immediate supervisor or department head at Step I or Step II in the grievance process, respectively. See Tex. Loc. Gov’t Code '' 143.128(d), 143.129(c). We see nothing that would indicate the Legislature intended to abrogate municipalities’ governmental immunity in such a haphazard manner. To discover such an intent in this case, in direct opposition to the statutory language, would run afoul of long-held statutory construction principles that compel strict construction of penal statutes and statutes waiving sovereign and governmental immunity. See De La Cruz, 156 S.W.3d at 565; see also Wichita Falls State Hosp., 106 S.W.3d at 696. Jackson cites the testimony of Alice Perrenot, division manager for the Human Resources Department, as evidence that the Commission approved the recommendation of the grievance examiner. Whatever the import of her testimony might be, however, there is no statutory basis for such an assertion. And even assuming the Commission’s policy is to review grievance examiners’ recommendations, such a review does not constitute a “decision of the commission” as required by Section 143.134(h). As we have explained, it is undisputed that there was no Step IV appeal in Jackson’s grievance that would have necessitated a “decision of the commission” and triggered the penalty provision. See Tex. Loc. Gov’t Code ' 143.131. Finally, Jackson protests that interpreting Section 143.134(h) as we have leaves fire fighters without the means to induce compliance with favorable recommendations made in the grievance process. But we believe the statutory language indicates the Legislature’s deliberate choice not to subject governmental entities to stiff statutory penalties absent a final decision made under the process that the Code allows, a process that the Legislature afforded fire fighters considerable opportunity to direct. Jackson’s position would require this Court to effectively insert language into Section 143.134(h) that the Legislature itself did not include. We decline to second-guess the Legislature’s policy choice by adding language to an unambiguous statute. III. Conclusion We conclude that the grievance examiner’s recommendation concerning Jackson’s grievance was not a sanctionable decision under Section 143.134(h); therefore, the trial court lacked jurisdiction over Jackson’s statutory penalty claim. Accordingly, we reverse the court of appeals’ judgment and dismiss Jackson’s statutory penalty claim for want of jurisdiction. City of Houston v. Jackson, No. 04-0465 (Tex. Apr. 7, 2006)(O’Neill) __________________________________________ Harriet O’Neill Justice OPINION DELIVERED: April 7, 2006  Chapter 143 of the Local Government Code applies only to those municipalities that have: (1)(a) a population of 10,000 or more; (b) a paid fire department and police department; and (c) voted to adopt Chapter 143 or the law codified by Chapter 143; or (2) elected to adopt Chapter 143 and whose acts subsequent to that election were validated by the law enacted by House Bill 822, Acts of the 73rd Legislature, R.S., 1993. Tex. Loc. Gov’t Code ' 143.002. The grievance process provided for in Subchapter G applies only to a municipality with a population of 1.5 million or more. Tex. Loc. Gov’t Code ' 143.101(a).  Section 143.127(a)(1)-(2) excepts certain types of grievances, including allegations of discrimination, from the purview of Chapter 143’s grievance procedure.  We note that hearing examiners are also authorized in Subchapter G under Section 143.1016, which applies only to municipalities with a population of 1.5 million or more. However, our analysis remains unaffected since Section 143.057 applies with equal force to large municipalities. Tex. Loc. Gov’t Code § 143.101(b) (noting that the entirety of Chapter 143 applies to municipalities with a population of 1.5 million or more unless otherwise provided).
In re Vesta Ins. Group, Inc., 192 S.W.3d 759 (Tex. 2006) In Re Vesta Ins. Group, No. 04-0141 (Tex. Mar. 17, 2006)(arbitration mandamus, non-signatories) ════════════ In re Vesta Insurance Group, Inc., et al. PER CURIAM OPINION An insurance company and an independent agent agreed to arbitrate rather than litigate any dispute “under or with respect to” their contract. But when the contract was terminated, the agent neither litigated nor arbitrated his dispute with the company; instead, he filed a tortious interference with contract suit against the insurer’s parent company, the agent who took his place, and two officers or affiliates of each. The trial court refused to compel arbitration under the Federal Arbitration Act, and the Second Court of Appeals denied mandamus relief. We conditionally grant it. See In re Weekley, 180 S.W.3d 127, 130 (Tex. 2005) (“Mandamus relief is proper to enforce arbitration agreements governed by the FAA.”). James Cashion and States General Insurance Company signed a contract on September 28, 1999, in which Cashion agreed to sell health insurance policies as a general agent for States General. The contract provided that States General could modify or cancel Cashion’s commissions on 60 days’ notice, and either party could terminate the relationship on 180 days’ written notice. The contract also required arbitration of “any dispute between them under or with respect to this contract.” States General and Cashion were the only parties to the contract. In November 2000, States General gave notice of its intent to reduce Cashion’s commissions. In December 2000, Vesta Insurance Group and Vesta Fire Insurance Corporation (collectively “Vesta”) purchased 100 percent of the stock of States General. A month later, States General terminated Cashion and replaced him with Jimmy Walker. On March 1, 2001, Cashion filed suit against Vesta and two of its corporate officers, James Tait and William Perry Cronin, and against Walker and two of his affiliates. Generally, the suit alleged tortious interference with Cashion’s contracts with States General and with his own sub-agents. States General (now a Vesta affiliate) intervened, but later settled with Cashion and is no longer a party. Accordingly, the only remaining party who was a signatory of the arbitration agreement is Cashion; the relators who seek to compel arbitration are all nonsignatories. We recently held that Texas law, consistent with federal law of direct‑benefits estoppel, requires a nonparty to arbitrate a claim “if it seeks, through the claim, to derive a direct benefit from the contract containing the arbitration provision.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 741 (Tex. 2005); see also Weekley, 180 S.W.3d at 131. While the boundaries of direct‑benefits estoppel are not always clear, nonparties generally must arbitrate claims if liability arises from a contract with an arbitration clause, but not if liability arises from general obligations imposed by law. Weekley, 180 S.W.3d at 132, 134. Tortious interference claims do not fall comfortably in either category. The obligation not to interfere with existing contracts is a general obligation imposed by law. But it is not imposed on the parties to that contract, as “a party cannot tortiously interfere with its own contract.” Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995). Nor is it imposed on corporate agents, except for actions completely contrary to corporate interests. Id. In other words, “a person must be a stranger to a contract to tortiously interfere with it.” Morgan Stanley & Co., Inc. v. Texas Oil Co., 958 S.W.2d 178, 179 (Tex. 1997). Thus, while liability for tortious interference arises from the general law, nonliability arises from connections with the contract. For several reasons, we hold that tortious interference claims between a signatory to an arbitration agreement and agents or affiliates of the other signatory arise more from the contract than general law, and thus fall on the arbitration side of the scale. First, corporations must act through human agents. Holloway, 898 S.W.2d at 795. As a result, every contract claim against a corporation could be recast as a tortious interference claim against its agents. See id. While legal rules might render such claims unprofitable in the long run, in the short run they could be used to forestall arbitration. “The FAA directs courts to place arbitration agreements on equal footing with other contracts.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 293 (2002). Accordingly, we must avoid any rule that makes it easier to avoid arbitration clauses than other clauses of a contract. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 230 n.2 (Tex. 2003) (noting most courts have found illusory any contract allowing one party to unilaterally avoid arbitration). Second, requiring arbitration of such claims complies with the rule that “we look first to whether the parties agreed to arbitrate a dispute.” Waffle House, 534 U.S. at 294. When contracting parties agree to arbitrate all disputes “under or with respect to” a contract (as they did here), they generally intend to include disputes about their agents’ actions because “[a]s a general rule, the actions of a corporate agent on behalf of the corporation are deemed the corporation’s acts.” Holloway, 898 S.W.2d at 795. If arbitration clauses only apply to contractual signatories, then this intent can only be accomplished by having every officer and agent (and every affiliate and its officers and agents) either sign the contract or be listed as a third-party beneficiary. This would not place such clauses on an equal footing with all other parts of a corporate contract. Finally, many Texas courts of appeals have held that a tortious interference claim against a signatory’s employees or affiliates must be arbitrated, even though the latter are nonsignatories. Several federal courts have agreed. We remain mindful of the importance of keeping federal and state law uniform so that arbitrability does not depend on where one seeks to compel it. Kellogg, 166 S.W.3d at 739. We agree with Cashion that he would not be required to arbitrate a tortious interference claim against a complete stranger to his contract and its arbitration clause. But he did not sue any strangers here; every defendant is a current or former owner, officer, agent, or affiliate of States General, with whom he agreed to arbitrate these disputes. Cashion also asserts that several of the relators waived any right to arbitration by litigating for two years in the trial court. There is a strong presumption against waiver under the FAA. See In re Serv. Corp. Int’l, 85 S.W.3d 171, 174 (Tex. 2002). Merely taking part in litigation is not enough unless a party “has substantially invoked the judicial process to its opponent’s detriment.” Id. (internal citations omitted). Delay alone generally does not establish waiver. Id. According to the affidavit of one of his attorneys, Cashion incurred more than $200,000 in expenses and fees due to “prolonged and extensive discovery” that “would not have been allowed or occurred in an arbitration.” The record shows that Cashion’s pre-trial costs were largely self-inflicted C he sent far more discovery requests than he received, and amended his petition at least eleven times. The relators did not “shower” him with interrogatories and discovery requests, see Keytrade USA, Inc. v. Ain Temouchent M/V, 404 F.3d 891, 898 (5th Cir. 2005); other than standard requests for disclosure (all requiring the same responsive information, see Tex. R. Civ. P. 194.2), they noticed a total of four depositions, and the Vesta defendants each sent a request for production. Because Cashion offered none of these documents in the trial court and presented no details about any of them, the record does not show whether these requests were limited or extensive, whether they sought information for affirmative claims or defensive ones, or even whether they addressed the merits or merely the arbitration issue. Further, Cashion does not allege that the discovery already conducted would not be useful in arbitration; to the contrary, he concedes it would be useful whether the case is arbitrated or tried. See In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (noting that even substantial invocation of judicial process does not constitute waiver absent proof of prejudice). On this record, Cashion has not demonstrated sufficient prejudice to overcome the strong presumption against waiver. Cashion’s attorney also averred that Vesta and Cronin successfully moved to dismiss his commercial bribery claims against them, and that Walker unsuccessfully moved for summary judgment. But the former motions sought dismissal for lack of standing rather than on the merits, and the record reveals nothing about the latter as it was never tendered into the record or described in any particulars. Without more details than this, Cashion has not shown that the relators substantially invoked the judicial process enough to overcome the strong presumption against waiver. We agree that allowing a party to conduct full discovery, file motions going to the merits, and seek arbitration only on the eve of trial defeats the FAA’s goal of resolving disputes without the delay and expense of litigation. See Com‑Tech Assoc. v. Computer Assoc. Int’l, Inc., 938 F.2d 1574, 1576-77 (2nd Cir. 1991). We disagree that the record here shows that the relators did so, at least not to the degree necessary to overcome the presumption against waiver. Accordingly, without hearing oral argument, see Tex. R. App. P. 52.8(c), we conditionally grant the writ of mandamus and direct the trial court to order that Cashion’s claims proceed to arbitration. We are confident that the trial court will promptly comply, and our writ will issue only if it does not. OPINION DELIVERED: March 17, 2006  9 U.S.C. ' 1 et. seq. The parties stipulated that the arbitration clause here is governed by the FAA.  The provision stated: ARBITRATION. The parties intend that any dispute between them under or with respect to this contract shall be resolved without resort to any litigation. . . . States and Cashion agree that they will submit such dispute to arbitration in the manner specified in, and such arbitration proceeding will be conducted in accordance with the rules of the American Arbitration Association. . . . This shall be the sole and exclusive method of resolving such disputes.  Tait was Vesta's former chief executive officer, and Cronin was Vesta's former chief financial officer.  National Benefit Advisory Association, a company Walker owned, and Robert Merill, his business partner.  See, e.g., In re Media Arts Group, Inc., 116 S.W.3d 900, 905 n.4, 908 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding [mand. denied]) (compelling arbitration of suit alleging tortious interference and other claims brought by one signatory against employees and affiliates of the other); Williams Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 137-38 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (same in suit by one signatory against employees and subcontractors of the other); In re EGL Eagle Global Logistics, L.P., 89 S.W.3d 761, 765-66 (Tex. App.-Houston [1st Dist.] 2002, orig. proceeding [mand. denied]) (same in suit by one signatory against subsequent employer of signatory employee, and its employees); McMillan v. Computer Translation Sys. & Support, Inc., 66 S.W.3d 477, 482-83 (Tex. App - Dallas 2001, no pet.) (same in suit by one signatory against chairman and corporate counsel of the other); In re Pennzoil Co., 30 S.W.3d 494, 499 (Tex. App.‑San Antonio 2000, orig. proceeding) (same in suit by one signatory against corporation hired by other signatory as replacement); Valero Energy Corp. v. Teco Pipeline Co., 2 S.W.3d 576, 593 (Tex. App - Houston [14th Dist.] 1999, no pet.) (same in suit by one signatory against corporate affiliate of the other, as well as the affiliate's officers and directors); Carlin v. 3V, Inc., 928 S.W.2d 291, 297 (Tex. App-Houston [14th Dist.] 1996, no writ) (same in suit by one signatory against sister corporation of the other); Valero Energy Corp. v. Wagner & Brown, II, 777 S.W.2d 564, 565 (Tex. App.‑El Paso 1989, writ denied) (same in suit by one signatory against other signatory and affiliates); Lette v. Brooke Corp., No. 13‑02‑00527‑CV, 2004 WL 1797578, at *5‑6 (Tex. App.CCorpus Christi, Aug. 12, 2004, pet. denied) (not designated for publication) (same in suit by one signatory against corporate affiliates of signatory buyer). But see Fridl v. Cook, 908 S.W.2d 507, 513 (Tex. App.‑El Paso 1995, writ dism'd w.o.j.) (refusing to compel arbitration of suit alleging tortious interference brought by one signatory against sole shareholder and alleged alter ego of the other because of independent fraud claim).  See, e.g., Grigson v. Creative Artists Agency, 210 F.3d 524, 527-28 (5th Cir. 2000) (compelling arbitration of suit alleging tortious interference and other claims brought by one signatory against third parties); Smith/Enron Cogeneration Ltd. P'ship, Inc. v. Smith Cogeneration Intern., Inc., 198 F.3d 88, 97-99 (2d Cir. 1999) (same in suit by one signatory against corporate affiliates of the other); Sunkist Soft‑Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757‑758 (11th Cir. 1993) (same in suit by one signatory against corporate affiliates of the other); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textiles, S.A., 863 F.2d 315, 320‑321 (4th Cir. 1988)(same in suit by one signatory against corporate affiliates of the other); Hughes Masonry Co., Inc. v. Greater Clark County Sch. Bldg. Corp., 659 F.2d 836, 839, 841, n. 9 (7th Cir. 1981) (same in suit by one signatory against construction manager hired by the other).
In Re Dillard Department Stores, No. 04-1132 (Tex. Mar. 3, 2006)(per curiam opinion)(arbitration mandamus, employment context, retaliatory discharge) In re Dillard Department Stores, Inc., Relator PER CURIAM OPINION In this original proceeding, relator Dillard Department Stores, Inc. seeks to compel arbitration of a retaliatory discharge claim filed by its former employee. The trial court denied Dillard’s motion to compel, and the court of appeals rejected Dillard’s petition for writ of mandamus. 153 S.W.3d 145. Because the trial court clearly abused its discretion in denying the motion to compel arbitration, we conditionally grant Dillard’s petition for writ of mandamus. Delia Garcia worked as a sales associate at Dillard’s Sunland Park store in El Paso. In August 2000, Dillard adopted an arbitration policy covering most employment disputes, including retaliatory discharge. In 2002, Garcia was fired six months after requesting workers’ compensation benefits for work-related injuries. Garcia filed the underlying suit for retaliatory discharge, and Dillard moved to compel arbitration. In response, Garcia alleged that she never agreed to the arbitration policy, and even if she had, the agreement would be unenforceable because Dillard retained the right to modify the policy at any time, rendering its promise to arbitrate illusory. An employer may enforce an arbitration agreement entered into during an at-will employment relationship if the employer establishes that the employee received notice of its arbitration policy and accepted it. In re Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002), cert. denied, 537 U.S. 1112 (2003). Notice is effective if it unequivocally communicates to the employee definite changes in the employment terms. Id. (citing Hathaway v. General Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986)). If the employee receives notice and continues working with knowledge of the modified employment terms, the employee accepts them as a matter of law. Id. The record establishes that, on August 27, 2000, Dillard presented its arbitration policy to employees at a mandatory meeting held inside the store before it opened for business that day. Employees received a packet of materials containing a summary, called the “Fairness in Action Program” (Program), a detailed guide, called the “Rules of Arbitration” (Rules), and an acknowledgment form, which constituted the cover page of the Rules. The acknowledgment form briefly explained Dillard’s arbitration policy, stated an effective date of August 1, 2000, and conspicuously warned that employees were deemed to accept the policy by continuing their employment. In Halliburton, we concluded that similar information unequivocally notified employees of definite changes in their employment terms. Id. at 568-69. Garcia continued her employment at Dillard until 2002. Thus, if Garcia received the acknowledgment form, she agreed to Dillard’s arbitration policy. For the reasons explained below, we conclude that the trial court clearly abused its discretion in finding that Garcia did not receive it. In reviewing findings of fact in a mandamus proceeding, we cannot substitute our judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Instead, the relator “must establish that the trial court could reasonably have reached only one decision,” and that its finding to the contrary is “arbitrary and unreasonable.” Id. at 840 (citations omitted). Accordingly, the question presented is whether the evidence compels a finding that Garcia received the acknowledgment form. The acknowledgment form provided a place for the employee’s signature acknowledging receipt of the Rules. Dillard collected the signatures and stored them in its personnel files, but was unable to produce Garcia’s form or a witness who remembers seeing Garcia at the meeting. Dillard contends, however, that Garcia’s affidavit and other evidence clearly establish that she received the acknowledgment form. Garcia’s affidavit states: In the fall of 2000 I was presented with a document by my employer that I was asked to sign. I was presented the document during a sales meeting at which time the arbitration agreement was not explained. I read the document which provided for a short explanation of the program to arbitrate claims against Dillard’s. . . . I refused to sign the agreement because I did not agree to be bound by terms of the agreement. . . . I was never told or instructed by any employee of Dillard’s that if I continued my employment I would be bound by the terms of any arbitration agreement. I was never presented with a copy of the Dillard’s Fairness in Action Program or Rules of Arbitration . . . . Garcia does not deny that the “fall of 2000" meeting was held on August 27, nor that the “document” she read was the acknowledgment form. Indeed, Garcia cannot do so because payroll records show that she clocked in on August 27 at 9:48 a.m., just twelve minutes before the meeting began. In addition, the store did not open for business until noon, and the meeting was held in the women’s shoes department, where Garcia was a sales associate. The court of appeals identified two factors as supporting a finding that the “document” Garcia received was not the acknowledgment form. First, it observed that the acknowledgment form constituted the cover page of the Rules, and Garcia specifically denied receiving the Rules. 153 S.W.3d at 150. Although this “attachment” factor has some logical appeal, Garcia does not deny receiving the acknowledgment form, and the record contains uncontroverted evidence that the Program, Rules, and acknowledgment form were the only arbitration documents distributed to employees. More importantly, the acknowledgment form meets Garcia’s description of a document that provided a short explanation of the arbitration program and a place for the employee’s signature. The second factor relied upon by the court of appeals was Garcia’s statement that she refused to sign the document because she “did not agree to be bound by terms of the agreement.” From this, the court inferred that Garcia did not receive the acknowledgment form because it stated that the employee would be bound by continuing his or her employment, not by a signature. 153 S.W.3d at 150. The court assumed that Garcia correctly interpreted the legal effect of language contained in some other arbitration “document” she read in the fall of 2000. The evidence in the record, especially Garcia’s affidavit, compels a finding that Garcia received the same acknowledgment form everyone else received. Therefore, the trial court committed a clear abuse of discretion in finding no agreement to arbitrate. In the trial court and in both mandamus briefs, Garcia argued that, even if she agreed to arbitrate, the agreement is illusory and unenforceable. The court of appeals did not expressly consider this issue, but we do so here, as it constitutes an alternative ground to support the trial court’s denial of Dillard’s motion to compel arbitration. See Tex. R. App. P. 47.1; 53.4. The enforceability of an arbitration agreement is a question of law. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). In a mandamus proceeding, we review a trial court’s legal conclusions with limited deference because the trial court has “no discretion in determining what the law is or applying the law to the facts.” Walker, 827 S.W.2d at 840. Accordingly, we will determine whether Dillard’s arbitration agreement is illusory. As a starting point, Garcia concedes that nothing in the Rules expressly reserves to Dillard a right to unilaterally modify its arbitration policy. Cf. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 230 n.2 (Tex. 2003) (citing cases supporting the rule that“if a party retains the unilateral, unrestricted right to terminate the arbitration agreement, it is illusory.”); TenetHealthcare Ltd. v. Cooper, 960 S.W.2d 386, 388-89 (Tex. App.—Houston [14th Dist.] 1998, pet. dism’d w.o.j.) (holdingthat an arbitration agreement in an employee handbook was illusory where the employer expressly reserved a right tounilaterally rescind any provisions of the handbook). Garcia contends that Dillard nevertheless retained this right because the Rules state that the arbitration agreement does not modify the employee’s at-will relationship. Consequently, Garcia argues, the arbitration agreement, like her at-will employment, is terminable at any time, thereby rendering it illusory. This argument is without merit because an arbitration agreement is not illusory, despite being formed in an at-will employment relationship, if the promises to arbitrate do not depend on continued employment. In re Halliburton, 80 S.W.3d at 569. Dillard’s arbitration materials supply no basis for construing the agreement as contingent on continued employment. To the contrary, the Program and Rules clearly indicate that the primary purpose of the agreement is to resolve claims that arise in connection with the employee’s separation. Thus, Garcia’s at-will status, standing alone, does not render the arbitration agreement illusory. Finally, Garcia contends that, despite the absence of an express reservation, Dillard retained a right to unilaterally modify the arbitration agreement because it exercised this power in 2002 by drafting a new arbitration policy. Garcia envisions Dillard’s 2002 policy as retroactively amending her preexisting agreement to arbitrate under the 2000 policy, yet nothing in the record supports this view. An employer may adopt a new policy or amend an existing one at any time, and the changes will not affect employees who do not receive notice of the changes and accept them. Id. at 568. It is undisputed that Dillard did not notify Garcia of the 2002 modifications. Thus, neither the law nor the record support Garcia’s contention that Dillard unilaterally modified her arbitration agreement. The trial court clearly abused its discretion in denying Dillard’s motion to compel arbitration. Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus and order the trial court to vacate its order denying Dillard’s motion to compel arbitration, and to enter a new order compelling arbitration of Garcia’s claims. Tex. R. App. P. 52.8(c). We are confident the trial court will comply, and our writ will issue only if it does not. Opinion Delivered: March 3, 2006
In Re Dillard Department Stores, No. 05-0250 (Tex. Jan. 27, 2006)(arbitration mandamus, employment context)(per curiam opinion)
In re Dillard Department Stores, Inc. and Grizelda Reeder, Relators,
═══════════════════════════════════════════ PER CURIAM OPINION
In this original mandamus proceeding, the relators Dillard Department Stores, Inc. and Grizelda Reeder (collectively “Dillard”) challenge the trial court’s denial of their motion to compel arbitration under an arbitration agreement between Dillard and an employee, Andrea Martinez. The court of appeals denied Dillard’s petition for writ of mandamus. We hold that the arbitration agreement is valid and enforceable and that Martinez’s claims fall within the terms of the agreement. Because the trial court clearly abused its discretion in denying the motion to compel arbitration we conditionally grant Dillard’s petition for writ of mandamus.
Andrea Martinez was employed with Dillard for almost twenty years. On August 25, 2000, Martinez signed an arbitration agreement in which she acknowledged that she had received and would be subject to the rules of arbitration contained in the agreement and that her continued employment constituted acceptance of the provisions. The arbitration terms expressly applied to claims arising from employment that were violations of the law or personal injuries arising from termination. The arbitration agreement excluded worker’s compensation claims. Dillard’s representative also signed the agreement.
On November 15, 2002, Dillard terminated Martinez's employment, and on November 13, 2003, Martinez filed this lawsuit against Dillard, its district manager, Grizelda Reeder, and two unnamed employees. Martinez asserted a cause of action for defamation. Dillard moved to compel arbitration, first under its revised 2002 arbitration rules, but then amended their filings to compel arbitration under the 2000 rules that Martinez originally acknowledged. It is undisputed that the Federal Arbitration Act (FAA) applies to the arbitration agreement. See 9 U.S.C. §§ 1-16.
Mandamus relief is available when a trial court erroneously denies a motion to compel arbitration under the FAA. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001). “[A] party seeking to compel arbitration under the FAA must establish that: (1) there is a valid arbitration agreement, and (2) the claims raised fall within that agreement's scope.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005).
Martinez challenges both the validity and scope of the arbitration agreement. Dillard argues that the arbitration agreement is valid because both parties agreed to it and that Dillard does not retain a unilateral right to modify the agreement. We agree.
Contract law determines the validity of arbitration agreements. Id. The trial court’s determination of an arbitration agreement's validity is a legal question. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). The objective intent as expressed in the agreement controls the construction of an unambiguous contract, not a party's after-the-fact conduct. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000) (holding that a court must give effect to parties' intentions as expressed in the document); See J.M. Davidson, Inc., 128 S.W.3d at 223 (holding that a court should first try to determine intent from the document if unambiguous before resorting to parol evidence).
Martinez does not deny she signed the 2000 arbitration agreement and then continued to work at Dillard. That agreement and its rules of arbitration provide no unilateral right to modify the agreement or the rules. But Dillard’s initial motion to compel arbitration relied on its 2002 rules of arbitration which, unlike the 2000 rules, specifically included defamation claims. Martinez never agreed to the 2002 rules and argued that Dillard’s filing for arbitration under the 2002 rules showed that Dillard intended to retain the right to unilaterally modify the arbitration agreement. In response, however, Dillard agreed that the 2000 rules applied, not the 2002 rules.
The arbitration agreement and the 2000 rules do not provide Dillard any right to unilaterally modify the agreement. For that reason, and because both parties agreed to and signed the agreement, the agreement is not illusory and is binding on Martinez. See Lopez, 22 S.W.3d at 861.
Dillard next argues that even though defamation claims are not specifically mentioned in the 2000 rules, Martinez’s claim is nevertheless covered under the arbitration agreement because defamation is a personal injury. A court should not deny arbitration "unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue." Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995) (quoting Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34, 37 (5th Cir. 1990)) (emphasis omitted); see In re Kellogg Brown & Root, Inc., 166 S.W.3d at 737. The 2000 rules state:
Arbitration applies to the following claims over the reasons leading to separation and . . . to the following claims, timely made, which could have arisen out of the associate's employment:
* * * * *
• Violations of any other federal, state, county, municipal or other governmental, constitution, statute, ordinance, regulation, public policy or common law, affecting economic terms of employment. • Personal injuries arising from a termination, except those covered by workers' compensation. The phrase “personal injuries” has been interpreted by Texas courts to include injuries to reputation. See, e.g., Houston Printing Co. v. Dement, 44 S.W. 558, 560 (Tex. Civ. App.—Galveston 1898, writ ref’d); Brewster v. Baker, 139 S.W.2d 643, 645 (Tex. Civ. App.—Beaumont 1940, no writ).
Martinez argues that the term “personal injuries” can reasonably be read to mean only bodily injuries. However, the agreement is susceptible to an interpretation that includes Martinez’s claim of defamation. See, e.g., Houston Printing Co., 44 S.W. at 560. Therefore, the trial court was required to compel arbitration. Prudential Sec. Inc., 909 S.W.2d at 899.
Martinez argues her claims did not arise from her termination and therefore are not arbitrable under the agreement. We disagree. Martinez's claims are tied to her termination. Martinez alleges defamation based on comments made near the time of her termination and she seeks damages including "loss of earnings and earning capacity." Any damages in this case could be viewed as intertwined with her employment and termination, and any ambiguity as to whether "arising from" should mean intertwined, or occurring as a direct result from, is resolved in favor of arbitration. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex. 1992); Prudential Sec. Inc., 909 S.W.2d at 899. We hold that Martinez’s claims fall within the scope of the arbitration agreement signed by the parties.
Without hearing oral argument, we conditionally grant the writ of mandamus and direct the trial court to order that all claims proceed to arbitration under the Federal Arbitration Act. The clerk is instructed to issue the writ only if the trial court fails to do so. OPINION DELIVERED: January 27, 2006.
Sunday, July 15, 2007
Royce B. West, Julia L.S. Gooden, a/k/a Julia L.S. Gooden-Wood, and Robinson West & Gooden, P.C. v. Malcolm S. Robinson, No. 04-0346 (Tex. Dec. 9, 2005)(per curiam) (court of appeals failed to address all issues raised) On Petition for Review from the Court of Appeals for the Eleventh District of Texas PER CURIAM OPINION Malcolm S. Robinson, Royce B. West, and Julia L.S. Gooden practiced law at Robinson West & Gooden P.C. Robinson filed suit against West, Gooden, and the corporation (collectively, West), alleging various causes of action and seeking dissolution of the corporation. West answered with a general denial and raised several counterclaims. The parties then filed a joint motion to abate, which stated: 1.Plaintiff and Defendants have both sued each other in the above referenced matter. 2.The parties however, have agreed and do hereby agree to arbitrate their disputes and dissolve the corporation to wit: Robinson West & Gooden P.C. The trial court granted the motion and the parties proceeded to arbitration, but the arbitrator’s award did not dissolve the corporation. Over Robinson’s objection, the trial court confirmed the award. Robinson appealed, arguing that the arbitrator exceeded his authority by making an award that contravened the agreement to dissolve the corporation. West argued that the parties modified the arbitration agreement by submitting amended claims and counterclaims for arbitration pursuant to an agreement they reached with the arbitrator at a preliminary hearing. West also argued that Robinson waived any complaint about the scope of the arbitration agreement because Robinson did not object during the arbitration proceedings. The court of appeals concluded that the parties, in their joint motion to abate, entered into a binding Rule 11 agreement to dissolve the corporation and that the arbitrator exceeded his authority under that agreement. It reversed the trial court’s judgment and rendered judgment “compelling arbitration of the mechanics of the dissolution of the corporation.” ___ S.W.3d ___, ___. The court’s opinion did not address whether the arbitration agreement was modified or whether Robinson waived his right to complain about its scope. West filed a motion for rehearing in which he argued that the court failed to address all the issues necessary to disposition of the appeal, as required by Texas Rule of Appellate Procedure 47.1. Rule 47.1 provides: “The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.” Tex. R. App. P. 47.1. While the court of appeals acknowledged that West asked the arbitrator not to dissolve the corporation, it failed to identify and expressly consider modification and waiver as distinct issues associated with the relief the parties requested from the arbitrator. ___ S.W.3d at ___. Consequently, the court of appeals did not comply with Rule 47.1. See Tex. Disposal Sys., Inc. v. Perez, 80 S.W.3d 593, 594 (Tex. 2002) (holding that the court of appeals erred in failing to consider an alternative basis asserted by the appellee to support its attorney’s fees award); Latham v. Castillo, 972 S.W.2d 66, 70 (Tex. 1998) (concluding that the court of appeals erred in remanding appellants’ fraud and breach of contract claims without discussion). We have said that this provision is mandatory, and the courts of appeals are not at liberty to disregard it. See Lone Star Gas Co. v. R.R. Comm’n, 767 S.W.2d 709, 711 (Tex. 1989) (citing to Texas Rule of Appellate Procedure 90(a), the predecessor to Rule 47.1, and remanding the case for the court of appeals to decide the validity of certain Railroad Commission rules). Accordingly, without hearing oral argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand the case to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1, 60.2(d). Opinion delivered: December 9, 2005
Yusuf Sultan, d/b/a U.S. Carpet and Floors, Petitioner v. Savio Mathew, No. 03-0831 (Tex. Nov. 18, 2005)(Jefferson) On Petition for Review from the Court of Appeals for the Fourteenth District of Texas Chief Justice Jefferson delivered the opinion of the Court, in which Justice O’Neill, Justice Green, Justice Johnson, Justice Simmons Hon. Rebecca Simmons, Justice, the Court of Appeals for the Fourth District, sitting by commission of Hon.Rick Perry, Governor of Texas, pursuant to Section 22.005 of the Texas Government Code. (assigned) and Justice Gaultney Hon. David Gaultney, Justice, the Court of Appeals for the Ninth District, sitting by commission of Hon. RickPerry, Governor of Texas, pursuant to Section 22.005 of the Texas Government Code. (assigned) join. Justice Hecht filed a dissenting opinion, in which Justice Wainwright and Justice Medina join. In this case we determine whether courts of appeals have jurisdiction to hear appeals from judgments of county courts or county courts at law following a de novo appeal from a small claims court. The Harris County Civil Court at Law No. 2 rendered a default judgment against Yusuf Sultan (“Sultan”) d/b/a U.S. Carpet and Floors after Sultan failed to appear for trial. Sultan appealed to the Fourteenth Court of Appeals, which dismissed Sultan’s appeal for want of jurisdiction based on section 28.053(d) of the Texas Government Code. The statute provides that a “[j]udgment of the county court or county court at law on the appeal [from the smallclaims court] is final.” Tex. Gov’t Code § 28.053(d) (emphasis added).___ S.W.3d ___. Because we agree that courts of appeals do not have jurisdiction over cases originally filed in small claims court, we affirm the court of appeals’ judgment. I Background Savio Mathew (“Mathew”) sued Sultan in small claims court for damages resulting from the installation of a laminate floor in Mathew’s home. The small claims court awarded Mathew $4000, and Sultan filed an appeal for a de novo trial in the Harris County Civil Court at Law No. 2. See Tex. Gov’t Code §§ 28.052(a), 28.053(b). A trial was set and notice was sent to Sultan; however, because Sultan allegedly did not receive the trial notice, he did not appear. Consequently, the county court rendered a default judgment against him. Sultan appealed to the court of appeals. Citing section 28.053(d) of the Texas Government Code, the court of appeals concluded that it did not have jurisdiction and dismissed the appeal. __ S.W.3d __. We granted Sultan’s petition for review to determine whether courts of appeals have jurisdiction over judgments of county courts or county courts at law following a de novo appeal from a small claims court. 47 Tex. Sup. Ct. J. 417 (Apr. 12, 2004). II Discussion A party dissatisfied with a small claims court judgment may appeal to the county court or county court at law for a de novo trial if the amount in controversy exceeds $20. Tex. Gov’t Code §§ 28.052(a), 28.053(b). The Texas Government Code provides that a “[j]udgment of the county court or county court at law on the appeal [from the small claims court] is final.” Id. § 28.053(d) (emphasis added). The question here is whether the word “final” in section 28.053(d) means final and appealable or final and not appealable. Before 1998, several courts held that a county court’s or county court at law’s judgment on de novo appeal from a small claims court could be appealed to the court of appeals. See, e.g., Galil Moving & Storage, Inc. v. McGregor, 928 S.W.2d 172 (Tex. App.—San Antonio 1996, no pet.); Sablatura v. Ellis, 753 S.W.2d 521, 522-23 (Tex. App.—Houston [1st Dist.] 1988, no pet.); see also Alan Wright et al., Appellate Practice and Procedure, 54 SMU L. Rev. 1093, 1119 (2001). In 1998, however, the First Court of Appeals held that the word “final” in section 28.053(d) meant “that there is no further appeal beyond the county court or county court at law.” Davis v. Covert, 983 S.W.2d 301, 302 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d w.o.j.) (overruling Sablatura, 753 S.W.2d 521). The Davis holding has since been followed by most Texas courts of appeals. See, e.g., Oropeza v. Valdez, 53 S.W.3d 410, 412 (Tex. App.—San Antonio 2001, no pet.); Woodlands Plumbing Co. v. Rodgers, 47 S.W.3d 146, 148 (Tex. App.—Texarkana 2001, pet. denied); Howell Aviation Servs. v. Aerial Ads, Inc., 29 S.W.3d 321, 323 (Tex. App.—Dallas 2000, no pet.); Williamson v. A-1 Elec. Auto Serv., 28 S.W.3d 731, 731-32 (Tex. App.—Corpus Christi 2000, pet. dism’d w.o.j.); Lederman v. Rowe, 3 S.W.3d 254, 256 (Tex. App.—Waco 1999, no pet.); Gaskill v. Sneaky Enters., Inc., 997 S.W.2d 296, 297 (Tex. App.—Fort Worth 1999, pet. denied); Automania, L.L.C. v. May, No. 03-03-00592-CV, 2004 WL 852275 (Tex. App.—Austin April 22, 2004, no pet.) (mem. op.); Martin v. Vaughan, No. 11-02-00133-CV, 2003 WL 22741155 (Tex. App.—Eastland Nov. 20, 2003, no pet.) (mem. op.); Townsend v. Accidental Injury Treatment Ctr., No. 07-99-0073-CV, 2000 WL 157900 (Tex. App.—Amarillo Feb. 9, 2000, no pet.) (not designated for publication). Although we have never specifically addressed the finality language in section 28.053(d), we have twice considered similar language in other statutes. In Seale v. McCallum, 287 S.W. 45 (Tex. 1926), we held that a statute declaring that the district court’s judgment on an election contest was “final” precluded appellate review of election contests by the courts of civil appeals. We stated: The election contest was instituted and tried under the provisions of Revised Statutes (1925), art. 3152, which, while providing for a contest of primary elections, declared that the decision of the district court or judge trying the contest should be “final as to all district, county precinct, or municipal offices.” The plain purpose of the clause quoted was to deny appellate jurisdiction to the Courts of Civil Appeals over contested elections of the character here involved. Id. at 45.In Mobil Oil Corp. v. Matagorda County Drainage Dist. No. 3, 597 S.W.2d 910 (Tex. 1980), we reached the opposite conclusion. In that case, we reviewed section 56.082 of the Texas Water Code, which gives the commissioners court exclusive jurisdiction over certain proceedings relating to drainage districts and provides that the commissioners court’s judgment on such issues “is final.” Id. at 911 (construing Tex. Water Code § 56.082). We concluded that “[t]he legislature did not intend by using the term ‘final’ in section 56.082 to prevent all review of commissioners court orders,” and we therefore held that commissioners court orders annexing territory for drainage districts were subject to review by the district court. Id. While both Mobil Oil and Seale are instructive in that they address similar language, neither case offers direct insight into the Legislature’s intent in using the word “final” in section 28.053(d). When construing a statute, “[o]ur primary objective . . . is to ascertain and give effect to the Legislature’s intent.” Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). To discern that intent, we consider the objective the law seeks to obtain and the consequences of a particular construction. Tex. Gov’t Code § 311.023(1), (5); see also City of Sunset Valley, 146 S.W.3d at 642. We must consider the statute as a whole and give meaning to the language that is consistent with its other provisions. City of Sunset Valley, 146 S.W.3d at 642. Applying these principles, we conclude that by declaring in section 28.053(d) that the “judgment of the county court or county court at law is final,” the Legislature intended to prohibit appeals to the courts of appeals. The Legislature created the small claims court to provide an affordable and expedient procedure for litigating claims involving relatively small amounts of money. The small claims court’s jurisdictional limit is $5000. See Tex. Gov’t Code § 28.003(a).See Act of May 27, 1953, 53rd Leg., R.S., ch. 309, § 17, 1953 Tex. Gen. Laws 778, 780 (creating small claims court and noting “[t]he fact that many citizens of the State of Texas are now in effect denied justice because of the present expense and delay of litigation when their claims involve small sums of money; and the further fact that the discouragement of litigation based on financial ability is contrary to the public policy of this State”); see also O. L. Sanders, Jr., The Small Claims Court, 1 S. Tex. L.J. 80, 85-86 (1954) (“Viewing the Small Claims Court Act as a whole, it must be concluded that the main object and purpose of the law was to place justice within the reach of many Texas citizens, who were previously denied such relief because the litigation expense and delay overshadowed their small claim.”). This basic purpose is reflected in almost every aspect of small claims court procedure. For example, the institution of a small claims action requires little more than completing a one-page form. See Tex. Gov’t Code § 28.012(b). The hearing is “informal, with the sole objective being to dispense speedy justice between the parties.” Id. § 28.033(d). On appeal, the county court must dispose of the claim “with all convenient speed.” Id. § 28.053(a). When construing section 28.053(d) in the context of other small claims court provisions, all of which underscore the Legislature’s basic goal of providing a simplified and inexpensive court procedure, it is reasonable to conclude that in section 28.053(d), the Legislature intended to forgo the added time and expense which inevitably accompany an appeal to the court of appeals. For example, appealing to a county court requires only that the appellant file an appeal bond and a notice ofappeal. See Tex. Gov’t Code § 28.052(b); Tex. R. Civ. P. 571. Appeals to the courts of appeals are much moreinvolved and require that the appellant, among other things, pay for the production of the clerk’s and reporter’s records. Tex. R. App. P. 35.3. Additionally, both parties must submit formal briefs. Tex. R. App. P. 38.1, 38.2. In Mobil Oil, we rejected Matagorda County’s contention that the word “final” in section 56.082 of the Texas Water Code meant “not reviewable,” reasoning that the Legislature did not intend to prevent all review of commissioners court orders annexing territory to drainage districts. See Mobil Oil Corp., 597 S.W.2d at 911. Here, however, we note that section 28.053(d) incorporates a form of appellate review. The Legislature has specifically provided that a dissatisfied party can obtain review of a small claims court judgment by appealing to the county court or county court at law for a de novo trial. See Tex. Gov’t Code §§ 28.052(a), 28.053(b). Thus, in section 28.053(d) the Legislature intended not to prevent all review of a small claims court judgment, but rather to limit the extent of review and thereby minimize the “expense and delay of litigation.” See Act of May 27, 1953, 53rd Leg., R.S., ch. 309, § 17, 1953 Tex. Gen. Laws 778, 780. Sultan contends that because a “final judgment” is required for an appeal, we cannot interpret the word “final” in section 28.053(d) as prohibiting review by the court of appeals. In Mobil Oil, we reasoned that “[a] judgment, though final, may yet be one that is reviewable. It is the finality which makes a judgment a subject for review.” 597 S.W.2d at 911. Granted, under “the general rule, . . . an appeal may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). But “the term ‘final,’ as applied to judgments, has more than one meaning.” Street v. Honorable Second Court of Appeals, 756 S.W.2d 299, 301 (Tex. 1988). Indeed: The term ‘final judgment’ applies differently in different contexts. A judgment is ‘final’ for purposes of appellate jurisdiction if it disposes of all issues and parties in a case. The term ‘final judgment’ is also used with reference to the time when trial or appellate court power to alter the judgment ends, or when the judgment becomes operative for the purposes of res judicata. Id. (citing McWilliams v. McWilliams, 531 S.W.2d 392, 393-94 (Tex. Civ. App.—Houston [14th Dist.] 1975, no writ)). Interpreting “final” in section 28.053(d) to mean “final for purposes of appeal to the court of appeals” would construe the statute to mean that every judgment by a county court concerning a small claims matter is appealable. This interpretation ignores interlocutory judgments. To be final for purposes of appeal, a judgment must dispose of all issues and parties in a case. Id. at 301. Such a fact-specific determination is made on a case-by-case basis. See Lehmann, 39 S.W.3d at 195 (noting that “whether a judicial decree is a final judgment must be determined from its language and the record in the case.”). There are many instances in which a “judgment” is interlocutory and not appealable to the court of appeals. See, e.g., Parking Co. of Am. v. Wilson, 58 S.W.3d 742, 742 (Tex. 2001) (partial summary judgment that did not dispose of all claims was “clearly interlocutory”); Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex. 1973) (order dismissing hospital from suit was interlocutory where trial court did not sever cause against hospital); Warren v. Walter, 414 S.W.2d 423, 423 (Tex. 1967) (judgment setting aside default judgment and granting new trial was interlocutory); Office Employees Int’l Union Local 277 v. S.W. Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965) (order authorizing depositions was interlocutory); Citizens Nat’l Bank of Beaumont v. Callaway, 597 S.W.2d 465, 466 (Tex. Civ. App.—Beaumont 1980, writ ref’d) (order compelling arbitration was interlocutory). Therefore, we read section 28.053(d) to mean that a final judgment from the county court is not appealable. Furthermore, to construe section 28.053(d) to mean “final and appealable” would be redundant. Absent section 28.053(d), an appeal to the court of appeals would be allowed in small claims cases where the amount in controversy exceeds $100. See Tex. Gov’t Code § 22.220(a) (granting courts of appeals jurisdiction over cases in which “the district courts or county courts have jurisdiction when the amount in controversy or the judgment rendered exceeds $100, exclusive of interest and costs”); Tex. Civ. Prac. & Rem. Code § 51.012 (allowing appeals to the courts of appeals in civil cases where “the judgment or amount in controversy exceeds $100, exclusive of interest and costs”). Thus, to allow the county court’s judgment in a small claims case to be appealed to the courts of appeals, the Legislature need not specifically declare that the judgment of the county court is final and appealable. We must avoid, when possible, treating statutory language as surplusage. Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 402 (Tex. 2000). Our interpretation is also guided by the principle that a specific statute controls over a more general one. Columbia Hosp. Corp. v. Moore, 92 S.W.3d 470, 473 (Tex. 2002). Here, section 28.053, which applies only to civil cases originating in small claims court, controls over section 22.220, which applies to “all civil cases.” Tex. Gov’t Code §§ 28.053(a), 22.220(a) (emphasis added). Sultan also argues that to deny him the opportunity to appeal to the courts of appeals violates the Texas Constitution’s open courts provision. See Tex. Const. art. I, § 13. We disagree. Under the Texas Constitution, the courts of appeals have jurisdiction over “all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.” Id. art. V, § 6 (emphasis added). As we stated in Seale v. McCallum, 287 S.W. 45, 47 (Tex. 1926), “the principle is fixed that the Legislature has the power to limit the right of appeal . . . .” By declaring in section 28.053(d) that the judgment of the county court or county court at law on an appeal from the small claims court is “final,” the Legislature exercised its constitutional power to restrict the jurisdiction of the courts of appeals. Although Sultan bases his argument on the Texas Constitution, we also note that the United StatesConstitution does not guarantee the right to an appeal. See Doleac v. Michalson, 264 F.3d 470, 492-93 (5th Cir. 2001)(holding that there is no due process right to appellate review); Able v. Bacarisse, 131 F.3d 1141, 1143 (5th Cir. 1998)(noting that “the right to appeal is a statutory right, not a constitutional right”). Finally, we recognize that there is a difference between the justice court and small claims court with respect to a party’s ability to appeal to the court of appeals. Under section 28.003(a) of the Texas Government Code, small claims courts have concurrent jurisdiction with the justice courts in actions involving amounts not exceeding $5000. Tex. Gov’t Code § 28.003(a). Nonetheless, there is no statute restricting the right to appeal to the courts of appeals in cases originating in justice courts. A few courts of appeals have reasoned that, given this jurisdictional overlap, it is illogical for the Legislature to allow appeals to the courts of appeals for claims initiated in a justice court, but not for claims initiated in a small claims court. See, e.g., Davis v. Covert, 983 S.W.2d 301, 303 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d w.o.j.); Howell Aviation Servs. v. Aerial Ads, Inc., 29 S.W.3d 321, 323 (Tex. App.—Dallas 2000, no pet.). We do not agree that the difference is illogical. To the contrary, it would seem illogical for the Legislature to have created the small claims court if the small claims court was intended to be identical in all respects to the justice court. As we have mentioned, in creating the small claims court, the Legislature sought to provide an accessible and affordable forum for litigation. The limitation on appeals is merely one of several measures intended to facilitate this goal. Even if the difference between the justice court and small claims court were illogical, “the problem [would be] one for legislative, not judicial solution.” State v. Jackson, 376 S.W.2d 341, 346 (Tex. 1964); see also Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (“The wisdom or expediency of a law is for the Legislature to determine, not this Court.”). III Conclusion We hold that under section 28.053(d) of the Texas Government Code, the courts of appeals lack jurisdiction over cases originally filed in the small claims court. Accordingly, we affirm the judgment of the court of appeals dismissing Sultan’s appeal for want of jurisdiction. See Tex. R. App. P. 60.2(a). ______________________________ Wallace B. Jefferson Chief Justice OPINION DELIVERED: November 18, 2005